August 4 2010
DA 09-0679
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 169
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOHNNY D. SEIFFERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DC 09-08
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert L. Stephens, Jr., Southside Law Center; Billings, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Alex Nixon, Carbon County Attorney; Patrick N. Dringman, Special
Deputy County Attorney; Big Timber, Montana
Submitted on Briefs: June 29, 2010
Decided: August 4, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Appellant Johnny D. Seiffert (Seiffert) appeals from the sentence imposed by the
Twenty-Second Judicial District Court, Carbon County, for his conviction of driving
under the influence of alcohol (DUI), in violation of § 61-8-401, MCA.
¶2 We consider the following issue on appeal:
¶3 Whether the District Court erred by denying Seiffert’s motion to dismiss for
negligent or deliberate suppression of evidence?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 This case arises out of Seiffert’s arrest and conviction for DUI in violation of § 61-
8-401, MCA. On the evening of April 12, 2008, Seiffert was involved in a one-vehicle
accident on Highway 78 near Red Lodge, Montana. Highway Patrolman Eric Gilbert
(Gilbert) responded to the crash and reported that during his investigation, he detected a
strong odor of intoxicating substance on Seiffert’s breath, Seiffert’s eyes were bloodshot
and glassy and that his speech was slurred. Gilbert also reported that Seiffert had poor
balance and was unsteady on his feet. After his arrest, Seiffert refused to take a breath
test.
¶5 Subsequently, on April 24, 2008, at the prosecutor’s request, the investigating
officer conducted a follow up investigation and located a closed circuit television
(CCTV) recording at the Silver Strike Casino in Red Lodge, Montana. During the
officer’s investigation, the owner of the Silver Strike Casino informed him that the CCTV
recordings are erased after four to six weeks. According to testimony in the record, the
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CCTV recording, which was actually a series of still photographs taken every several
seconds, showed Seiffert at the Silver Strike Casino gambling and walking within the
casino over the course of an hour immediately preceding the accident. Upon seeing the
CCTV recording, the officer requested a “still” image of Seiffert at the casino.
Ultimately, the CCTV recording was erased. Testimony by the investigating officer and
the Silver Strike Casino owner, however, indicates that there was no evidence on the
CCTV recording that Seiffert was intoxicated.
¶6 A week later, on May 2, 2008, prior to his arraignment in Carbon County Justice
Court, Seiffert’s attorney filed a motion and demand for discovery which included a
request for any audio or video recording within the “control” of the State. On May 30,
2008, the prosecution responded that the State had “produced all of the information in its
possession that relates to this case, and . . . will immediately provide the defendant with
copies of whatever investigative information may be subsequently generated.”
¶7 Over three months later, on July 27, 2008, the investigating officer filed a
supplemental narrative report which disclosed the existence of the CCTV recording. This
report was forwarded to Seiffert’s defense counsel on August 1, 2008. Days later,
Seiffert contacted the Silver Strike Casino owner himself and requested a copy of the
CCTV recording. Seiffert was informed, however, that the CCTV recording had been
erased and that it was no longer available.
¶8 On September 4, 2008, in response to the investigating officer’s supplemental
narrative and the fact that the Silver Strike Casino had erased the CCTV recording,
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Seiffert filed a motion to dismiss arguing that the loss of the CCTV recording was a
Brady violation because the CCTV recording was exculpatory evidence material to the
issue of his guilt or innocence. After an evidentiary hearing, the Justice Court denied
Seiffert’s motion to dismiss. Seiffert then entered a nolo plea reserving his right to
appeal the denial of his motion to dismiss for a Brady violation. On January 16, 2009,
the Justice Court entered its judgment and order. Seiffert immediately filed his notice of
appeal to the District Court.
¶9 On May 29, 2009, Seiffert filed his motion to dismiss in the District Court
detailing the Brady violation and the asserted negligent or deliberate suppression of
exculpatory evidence. After an evidentiary hearing, the District Court denied Seiffert’s
motion to dismiss reasoning that “[e]ven if the disputed evidence was exculpatory, and
even if the disputed evidence would have changed the outcome of the trial, the Defendant
has failed to show that the State suppressed evidence or that the evidence was material
for the purposes of suppression analysis.” Seiffert appeals.
STANDARD OF REVIEW
¶10 This Court reviews the denial of a motion to dismiss in criminal cases de novo to
determine whether the district court’s conclusions of law are correct. State v. Samples,
2008 MT 416, ¶ 13, 347 Mont. 292, 198 P.3d 803.
DISCUSSION
¶11 Whether the District Court erred by denying Seiffert’s motion to dismiss for
negligent or deliberate suppression of evidence?
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¶12 On appeal, Seiffert argues that since the State knew the CCTV recording would be
erased, the State’s failure to timely inform him of its existence was a Brady violation.
Without specifically going through each prong of the Brady test, Seiffert lays out what he
terms “fundamental principles” of a Brady violation and asserts that in light of the
ubiquitous use of CCTV surveillance today, an extension of these principles is warranted
in order to protect the due process rights of criminal defendants.
¶13 The State counters that the District Court properly denied Seiffert’s motion to
dismiss because, pursuant to our Brady jurisprudence, the State did not possess or
suppress the CCTV recording, Seiffert could have obtained the recording with reasonable
diligence, and disclosure of the CCTV recording would not have changed the outcome of
the case.
¶14 It is well established that the State’s suppression of material evidence favorable to
a defendant violates the defendant’s constitutional right to due process. See State v.
Johnson, 2005 MT 318, ¶ 12, 329 Mont. 497, 125 P.3d 1096 (citing Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963)). In order to
demonstrate a Brady violation the criminal defendant bears the burden of establishing
that (1) the State possessed evidence favorable to the defense; (2) the defendant did not
possess the evidence nor could he have obtained it with reasonable diligence; (3) the
prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed,
a reasonable probability exists that the outcome of the proceeding would have been
different. Johnson, ¶ 12. Here, even assuming that the CCTV recording was favorable to
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Seiffert and that the State’s knowledge that it would be destroyed amounts to
“constructive possession” as Seiffert asserts, under the second, third, and fourth prong of
the Brady test Seiffert cannot prevail.
¶15 First, if CCTV surveillance is as ubiquitous as Seiffert asserts, there is no reason
why he could not have, through the exercise of reasonable diligence, gone to the Silver
Strike Casino and requested to view the CCTV recording himself. Indeed, the owner of
the Silver Strike Casino testified that had Seiffert timely requested to view the CCTV
recording he would have been allowed to do so. As we have long held, the State is not
required to take the initiative or even assist the defendant in obtaining evidence on his
behalf. State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, 962 P.2d 571. While
Seiffert maintains he was unaware that the CCTV recording existed, such an argument is
not persuasive in light of his simultaneous assertion that CCTV surveillance is
“ubiquitous” and “well documented.” In short, Seiffert could have “obtained [the CCTV
recording] with reasonable diligence.” Johnson, ¶ 12.
¶16 Second, Seiffert has failed to establish that the State suppressed the CCTV
recording or that had it been disclosed, a reasonable probability exists that the outcome of
the proceeding would have been different. We have explained that if the State
deliberately or intentionally suppresses exculpatory evidence, a per se violation of due
process occurs. Belgarde, ¶ 16. Here, there is no evidence in the record that indicates the
State deliberately suppressed the CCTV recording. Rather, the record indicates that at
most, any alleged suppression of the recording was due to negligence on the part of the
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State. If the State’s loss of exculpatory evidence is due to negligence, a criminal
defendant must show that the evidence was material, of substantial use, and exculpatory
in order to have the case dismissed. State v. Herman, 2009 MT 101, ¶ 31, 350 Mont.
109, 204 P.3d 1254. The criminal defendant must also show that comparable evidence
could not be obtained by other reasonable means and that the exculpatory value was
apparent before the evidence was lost. Herman, ¶ 31. Seiffert has not met this burden.
¶17 Here, comparable evidence was obtained and in fact presented to the District
Court. The investigating officer who viewed the tape and the owner of the Silver Strike
Casino both testified that Seiffert did not appear intoxicated on the CCTV recording.
Unlike a situation where comparable testimonial evidence contradicts what a CCTV
recording shows, the comparable evidence here supports Seiffert’s position that he did
not appear intoxicated. As we explained in both Herman and Belgarde, in the context of
a Brady violation, testimony as to what was on a video recording is evidence that is
“comparable” to the actual video recording itself. Herman, ¶ 32; Belgarde, ¶ 23. Thus,
not only was comparable evidence obtained but there is no indication that disclosure of
the CCTV recording would have changed the outcome of the case because the District
Court knew that the CCTV recording did not show an obviously intoxicated Seiffert. We
conclude that Seiffert has failed to demonstrate a Brady violation and the District Court’s
denial of his motion to dismiss was not error.
¶18 Affirmed.
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/S/ W. WILLIAM LEAPHART
We concur:
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
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